BILL NUMBER: AB 1449	CHAPTERED  09/26/00

	CHAPTER   627
	FILED WITH SECRETARY OF STATE   SEPTEMBER 26, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 24, 2000
	PASSED THE ASSEMBLY   AUGUST 31, 2000
	PASSED THE SENATE   AUGUST 30, 2000
	AMENDED IN SENATE   AUGUST 25, 2000
	AMENDED IN SENATE   AUGUST 7, 2000
	AMENDED IN SENATE   MARCH 28, 2000
	AMENDED IN ASSEMBLY   MAY 28, 1999

INTRODUCED BY   Assembly Members Florez and Margett
   (Principal coauthor:  Assembly Member Robert Pacheco)

                        FEBRUARY 26, 1999

   An act to amend Section 4501.1 of, and to add Section 243.9 to,
the Penal Code, and to add Section 1768.85 to the Welfare and
Institutions Code, relating to prisoners.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1449, Florez.  Prisoners:  battery.
   Existing law provides that every person confined in the state
prison who commits a battery upon the person of any officer or
employee of the state prison by "gassing," as defined, is guilty of
aggravated battery, a felony.  Existing law also provides that these
provisions will only remain in effect until January 1, 2001, and on
that date are repealed as specified.
   This bill would provide that the above-described provisions of law
are applicable to any "peace officer" rather than "officer of the
state prison," extend the prohibition in those provisions to any
person confined in an institution under the jurisdiction of the
Department of the Youth Authority or a local detention facility,
require a report by the Department of the Youth Authority, as
specified, and would delete the provisions that would repeal these
provisions of law after January 1, 2001, thereby continuing those
provisions indefinitely.  This bill would additionally require actual
contact with the victim's skin or membranes in order to constitute
the offense.  This bill would also make the offense punishable as a
misdemeanor or a felony, as specified.  The bill would make related
changes.
   By expanding the scope of, and extending the effective operation
of, an existing crime, this bill would impose a state-mandated local
program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 243.9 is added to the Penal Code, to read:
   243.9.  (a) Every person confined in any local detention facility
who commits a battery by gassing upon the person of any peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2, or employee of the local detention facility is
guilty of aggravated battery and shall be punished by imprisonment in
a county jail or by imprisonment in the state prison for two, three,
or four years.
   (b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
   (c) The person in charge of the local detention facility shall use
every available means to immediately investigate all reported or
suspected violations of subdivision (a), including, but not limited
to, the use of forensically acceptable means of preserving and
testing the suspected gassing substance to confirm the presence of
human excrement or other bodily fluids or bodily substances.  If
there is probable cause to believe that the inmate has violated
subdivision (a), the chief medical officer of the local detention
facility, or his or her designee, may, when he or she deems it
medically necessary to protect the health of an officer or employee
who may have been subject to a violation of this section, order the
inmate to receive an examination or test for hepatitis or
tuberculosis or both hepatitis and tuberculosis on either a voluntary
or involuntary basis immediately after the event, and periodically
thereafter as determined to be necessary by the medical officer in
order to ensure that further hepatitis or tuberculosis transmission
does not occur.  These decisions shall be consistent with an
occupational exposure as defined by the Center for Disease Control
and Prevention.  The results of any examination or test shall be
provided to the officer or employee who has been subject to a
reported or suspected violation of this section.  Nothing in this
subdivision shall be construed to otherwise supersede the operation
of Title 8 (commencing with Section 7500).  Any person performing
tests, transmitting test results, or disclosing information pursuant
to this section shall be immune from civil liability for any action
taken in accordance with this section.
   (d) The person in charge of the local detention facility shall
refer all reports for which there is probable cause to believe that
the inmate has violated subdivision (a) to the local district
attorney for prosecution.
   (e) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
  SEC. 2.  Section 4501.1 of the Penal Code is amended to read:
   4501.1.  (a) Every person confined in the state prison who commits
a battery by gassing upon the person of any peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, or employee of the state prison is guilty of aggravated
battery and shall be punished by imprisonment in a county jail or by
imprisonment in the state prison for two, three, or four years.
Every state prison inmate convicted of a felony under this section
shall serve his or her term of imprisonment as prescribed in Section
4501.5.
   (b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
   (c) The warden or other person in charge of the state prison shall
use every available means to immediately investigate all reported or
suspected violations of subdivision (a), including, but not limited
to, the use of forensically acceptable means of preserving and
testing the suspected gassing substance to confirm the presence of
human excrement or other bodily fluids or bodily substances.  If
there is probable cause to believe that the inmate has violated
subdivision (a), the chief medical officer of the state prison or his
or her designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to receive
an examination or test for hepatitis or tuberculosis or both
hepatitis and tuberculosis on either a voluntary or involuntary basis
immediately after the event, and periodically thereafter as
determined to be necessary by the medical officer in order to ensure
that further hepatitis or tuberculosis transmission does not occur.
These decisions shall be consistent with an occupational exposure as
defined by the Center for Disease Control and Prevention.  The
results of any examination or test shall be provided to the officer
or employee who has been subject to a reported or suspected violation
of this section.  Nothing in this subdivision shall be construed to
otherwise supersede the operation of Title 8 (commencing with Section
7500).  Any person performing tests, transmitting test results, or
disclosing information pursuant to this section shall be immune from
civil liability for any action taken in accordance with this section.

   (d) The warden or other person in charge of the state prison shall
refer all reports for which there is probable cause to believe that
the inmate has violated subdivision (a) to the local district
attorney for prosecution.
   (e) The Department of Corrections shall report to the Legislature,
by January 1, 2000, its findings and recommendations on gassing
incidents at the state prison and the medical testing authorized by
this section.  The report shall include, but not be limited to, all
of the following:
   (1) The total number of gassing incidents at each state prison
facility up to the date of the report.
   (2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
   (3) A profile of the inmates who commit the aggravated batteries,
including the number of inmates who have one or more prior serious or
violent felony convictions.
   (4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
   (5) The results and costs of the medical testing authorized by
this section.
   (f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
  SEC. 3.  Section 1768.85 is added to the Welfare and Institutions
Code, to read:
   1768.85.  (a) Every person confined under the jurisdiction of the
Department of the Youth Authority who commits a battery by gassing
upon the person of any peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, or employee of
the institution is guilty of aggravated battery and shall be punished
by imprisonment in a county jail or by imprisonment in the state
prison for two, three, or four years.
   (b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
   (c) The person in charge of the institution under the jurisdiction
of the Department of the Youth Authority shall use every available
means to immediately investigate all reported or suspected violations
of subdivision (a), including, but not limited to, the use of
forensically acceptable means of preserving and testing the suspected
gassing substance to confirm the presence of human excrement or
other bodily fluids or bodily substances.  If there is probable cause
to believe that a ward has violated subdivision (a), the chief
medical officer of the institution under the jurisdiction of the
Department of the Youth Authority, or his or her designee, may, when
he or she deems it medically necessary to protect the health of an
officer or employee who may have been subject to a violation of this
section, order the ward to receive an examination or test for
hepatitis or tuberculosis or both hepatitis and tuberculosis on
either a voluntary or involuntary basis immediately after the event,
and periodically thereafter as determined to be necessary by the
medical officer in order to ensure that further hepatitis or
tuberculosis transmission does not occur.  These decisions shall be
consistent with an occupational exposure as defined by the Center for
Disease Control and Prevention.  The results of any examination or
test shall be provided to the officer or employee who has been
subject to a reported or suspected violation of this section.
Nothing in this subdivision shall be construed to otherwise supersede
the operation of Title 8 (commencing with Section 7500).  Any person
performing tests, transmitting test results, or disclosing
information pursuant to this section shall be immune from civil
liability for any action taken in accordance with this section.
   (d) The person in charge of the institution under the jurisdiction
of the Department of the Youth Authority shall refer all reports for
which there is probable cause to believe that the inmate has
violated subdivision (a) to the local district attorney for
prosecution.
   (e) The Department of the Youth Authority shall report to the
Legislature, by January 1, 2003, its findings and recommendations on
gassing incidents at the department's facilities and the medical
testing authorized by this section.  The report shall include, but
not be limited to, all of the following:
   (1) The total number of gassing incidents at each youth
correctional facility up to the date of the report.
   (2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
   (3) A profile of the wards who commit the batteries by gassing,
including the number of wards who have one or more prior serious or
violent felony convictions.
   (4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
   (5) The results and costs of the medical testing authorized by
this section.
   (f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
